Should qualified immunity be abolished?
After a series of high-profile police brutality incidents, questions emerged about the judicial doctrine of qualified immunity and how it protects police officers from lawsuits.
Rise of the Issue
Qualified immunity protects government officials, including police, accused of violating constitutional rights while performing their duties from lawsuits. Created by the United States Supreme Court in the 1960s, it originally intended to protect public office holders who, acting in good faith, had nevertheless violated an individual’s constitutional rights. Since then, law enforcement officials have been granted immunity as long as they don’t violate “clearly established” rights that they would have acknowledged. But a series of incidents in 2020 that resulted in suspected criminals being either killed or severely injured by police officers brought the debate surrounding qualified immunity to the fore, resulting in numerous efforts to curtail or end qualified immunity in states and local jurisdictions.
The debate is mainly focused on two diverging views of qualified immunity, with some arguing that qualified immunity unjustly protects police officers from their wrongdoings, while others believe that keeping qualified immunity is imperative for police officers to be able to do their high-risk job.
The need for qualified immunity is established
In Pierson v. Ray, the Supreme Court established the need for qualified immunity, stating that police should not be forced to choose between being charged with dereliction of duty and paying fines.
Victims of unreasonable searches given standing
In Bivens v. Six Unknown Named Agents, the Supreme Court ruled that victims of unreasonable searches had standing to sue the government, even in the absence of a specific statute supporting the suit.
Supreme Court creates qualified immunity
In Harlow v. Ferguson, a case involving Nixon’s White House aides who retaliated against whistleblowers, the Supreme Court immunized the aides, and thereby all others working for the government, from prosecution, placing the burden on the plaintiff to find a specific violation of statutory or constitutional law.
Prison inmate allowed to sue officers
The Supreme Court overturned an appeals court ruling that officers accused of the maltreatment of a Texas prison inmate had qualified immunity, allowing the case to go forward.
Efforts to ban qualified immunity in states fail
In the wake of the George Floyd killing, dozens of bills introduced in state legislatures to eliminate qualified immunity either died in committee or were withdrawn in the face of intense lobbying by police officers and police unions against the bills.
Use of Force
Those in favor believe that abolishing qualified immunity would make police officers be more vigilant and revert less to violence, while opponents say that it is essential in helping the police make split-second decisions during emergency situations.
Insurmountable Burden of Proof
Qualified immunity has been accused by some of placing too much burden on the defendants, while others say that it rightly protects police officers from merely doing their high-risk job.
Police Recruitment and Retention
Opponents believe that the debate around qualified immunity has scared many police officers and led a growing number of them to quit, while proponents say that qualified immunity is what has created distrust between communities and police officers and thus discouraged people from joining the police force in the first place.
Qualified immunity encourages excessive use of force.
Police officers too often use excessive force and otherwise violate constitutional rights of those they pursue and arrest, secure in the knowledge that they will not be charged.
It hinders many victims of police violence from getting justice.
Qualified immunity blocks the possibility for many victims to sue law enforcement officers, leaving police and other officials who violate a person’s constitutional rights unpunished.
It puts the burden on the plaintiff to prove they were wronged.
By requiring a successful plaintiff to provide a precedent that very closely matches the present case, the doctrine presents an often insurmountable challenge for plaintiffs who have a novel set of factors.
Qualified immunity leaves much room for interpretation.
Interpretation of qualified immunity has been known to widely vary depending on the judge and circumstances and is thus applied inconsistently.
It keeps police officers off the hook.
Because of the protections that qualified immunity provides to police officers, many officials are not being faced with any charges or any form of financial punishment for their wrongdoings.
Law enforcement officials need to be protected.
Law enforcement is a high-risk and high-responsibility role that is inevitably prone to a margin of error with difficult consequences, a burden that police officers need to be protected from.
Qualified immunity is not absolute immunity.
Contrary to absolute immunity, which protects law officials from any responsibility over the consequences of their decisions, qualified immunity only protects police officials who did the best they could with the knowledge they had at the time.
Police officers cannot perform as well under the stress of being sued.
Law enforcement officials cannot be expected to perform efficiently if they have to constantly assess the pros and cons of every one of their actions, as much of their role and responsibility relies on them being able to make quick judgment calls.
Eliminating qualified immunity discourages new recruits from joining the police force.
Law enforcement is a high-risk job that is not well compensated. If to that we add the burden of potential lawsuits, it disincentivizes new recruits from wanting to join the profession.
Eliminating it will expose lax enforcement officers to endless lawsuits.
Removing qualified immunity opens the door for any law breaker to avoid or delay their punishment by systematically putting the police force in question and placing the burden of proof on police officers to justify their every action.